IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joan Lee Ross, et al., :

Plaintiffs, :

v. : Case No. 2:12-cv-743

Home Depot USA Inc., et al., : 

 Magistrate Judge Kemp

 Defendants. :

 

OPINION AND ORDER

This matter is before the Court on a motion for sanctions

filed by plaintiffs Joan Lee Ross and her husband James Craig

Ross against defendant Home Depot, U.S.A. (“Home Depot”). The

Rosses seek sanctions based on Home Depot’s failure to preserve

some video footage of the fan display at issue. The motion has

been briefed fully and is now ripe for decision. For the reasons

set forth below, the motion for sanctions will be granted.

I. Background

Plaintiff Joan Lee Ross tripped and fell over an extension

cord at a Home Depot store in June, 2012. Plaintiffs filed this

action to recover compensatory damages on a theory of negligence

and premises liability. Plaintiffs also set forth a claim for

loss of consortium and seek punitive damages.

The facts relevant to this motion are largely undisputed. 

Eight days after Ms. Ross tripped and fell, her attorneys sent

Home Depot a “preservation letter.” The letter requested “that

all video from surveillance cameras for June 19, 2012 be

preserved, including all video depicting the incident” and that

“all video showing the fan display area from the time the fan

display was erected to the time of the incident be preserved for

future inspection.” (Doc. 57, Ex. A at 2). 

As part of their discovery the Rosses asked for some of this

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evidence. Specifically, they made this document request:

REQUEST FOR PRODUCTION NO. 9: Please produce all

surveillance video and/or photographs depicting the area

where Plaintiff Joan Lee Ross fell from the time that the

fan display adjacent to the aisle when Plaintiff Joan Lee

Ross fell through the time that Plaintiff Joan Lee Ross

was removed from the store by EMS personnel, as well as

all surveillance video and/or photographs depicting store

employees disconnecting the electrical cord that supplied

electricity to the fan display.

(Doc. 18, Ex. A at 9). In response, Home Depot produced

approximately 70 minutes of video, which consisted of

approximately 20 minutes of “customer activity” before the fall,

and approximately 50 minutes showing the fall, the arrival of the

emergency squad, and the removal of the cord.

Later, the Rosses moved to compel the production of all of

the video footage, beginning with “the fan display at issue being

set up,” which was sometime between April 9 and April 20, 2012. 

(Doc. 18 at 3). After initially objecting to the production of

this evidence on relevance grounds, Home Depot admitted that this

particular footage no longer existed. Consequently, the Court

denied the motion to compel, but noted that “[t]he circumstances

leading up to the destruction of any footage which once existed

will be a topic of discovery ... as well as possible motions

practice in the future.” (Doc. 20 at 1).

Next, the Rosses sent out a deposition notice “requesting

that Defendant produce the employee(s) most knowledgeable as to

the surveillance system at issue and the company’s policies and

procedures regarding the preservation of video footage.” (Doc.

57 at 4). Home Depot objected to the notice and filed a motion

for a protective order. (Doc. 23). In the motion, Home Depot

argued that the information sought was irrelevant, and that the

deposition would be “burdensome, expensive, and fundamentally,

[sic] unnecessary.” Id. at 1. The Court denied the motion for a

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protective order. Several depositions followed.

Two of those depositions are particularly relevant to the

motion for sanctions. First, Bianca Hansberry, the operations

assistant store manager at Home Depot, testified that after

receiving the preservation letter on July 3, 2012, she forwarded

it to Sedgwick Claims Management Services, Inc. (“Sedgwick”), the

administrator of Home Depot’s liability coverage, the same day. 

(Doc. 57, Ex. L at 45-47). Ms. Hansberry also testified that she

asked Lisa Young, the Asset Protection Manager at Home Depot, to

“record video as far back as she could possibly get of this

particular display for this claim.” Id. at 49.

In her deposition, Lisa Young testified that the DVR system

at Home Depot is capable of storing 90 days of video footage, and

the same amount of footage can be exported and burned onto a CD. 

Id., Ex. N at 30-33. Ms. Young saved the footage which captured

the incident involved in this case; however, she did not recall

when she did so. Id. at 47. Ms. Young testified that it was her

typical practice to “save the video within 48 hours” of being

contacted regarding an incident. Id. She also testified that

she gathers the footage of any incident using the following

method:

I go back to where – whoever got hurt, I wait for them

to enter into the screen. And I start from there, and

then I go to the end of the incident.

Id. at 50. In this case, Ms. Young stated that she gathered the

footage in her typical manner and ended the footage when “the

ambulance had taken [Ms. Ross] away.” Id. However, she was not

asked to obtain any additional video, including video of when the

display was set up and video of other customers’ encounters with

it, until September or October of 2012. By that time, the

footage was no longer available. Id. at 55, 64.

II. Discussion

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The parties generally agree on the law governing the motion

for sanctions. See Doc. 68 at 2. The Court of Appeals has held

that a district court may sanction a litigant for spoliation of

evidence if the following conditions are satisfied: 

First, the party with control over the evidence must have

had an obligation to preserve it at the time it was

destroyed. Second, the accused party must have destroyed

the evidence with a culpable state of mind. And third,

the destroyed evidence must be relevant to the other

side’s claim or defense.

Byrd v. Alpha Alliance Ins. Corp., 518 Fed. Appx. 380, 383-84

(6th Cir. 2013) (internal citations omitted). In addition, as

Home Depot points out, “[t]he party seeking the sanction bears

the burden of proof in establishing these facts.” Id. at 384. 

The Court examines these conditions in turn.

A. Duty to Preserve

A duty to preserve “may arise when a party should have known

that the evidence may be relevant to future litigation.” Id. at

384 (quoting Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553

(6th Cir. 2010)). In this case, Home Depot argues that

plaintiffs’ “extraordinary request for video of the display prior

to the occurrence that was then superseded by a request made in

discovery, did not create a duty on Home Depot to preserve video

that was reasonably believed to be irrelevant.” (Doc. 68 at 3). 

Home Depot points out that plaintiffs “asked no questions of the

Home Depot witnesses as to their belief as to what video was

relevant to the potential litigation,” and argues that “it can be

reasonably inferred that Home Depot believed it preserved the

relevant video footage....” Id. Thus, Home Depot disputes that

it had a duty to preserve, but it also argues, alternatively, if

it had a duty, it was satisfied.

Although not entirely clear, Home Depot’s argument seems to

be that no duty to preserve arose because the Rosses’ first

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document request was more narrow in scope than their preservation

letter and because they did not ask Home Depot’s witnesses about

their subjective beliefs regarding the relevance of the nowdestroyed footage. Home Depot’s alternative argument seems to be

that the footage it did produce was sufficient to satisfy any

obligation it had to preserve evidence.

Neither of these arguments has merit. Whether Home Depot’s

employees subjectively believed that the footage was relevant to

this case is not the issue. The duty to preserve evidence arises

when a party should have known that the evidence might be

relevant to future litigation. Beaven, 622 F.3d at 553. Home

Depot was put on notice that the lost footage might be relevant

to this litigation. The preservation letter expressly sought,

inter alia, preservation of “all video showing the fan display

area from the time the fan display was erected....” (Doc. 57,

Ex. A at 2). The duty to preserve that evidence did not vanish

just because the Rosses’ first document request was narrower than

their preservation letter.

Further, as the Court discussed in its decision on the

motion for a protective order, the missing footage might well

have been relevant to this case. (Doc. 28 at 5-6). This factor

is discussed more fully below. Accordingly, the Court finds that

Home Depot, the party with control over the evidence, had an

obligation to preserve it at the time it was destroyed. The

first condition required to sanction a litigant for spoliation of

evidence is therefore satisfied.

B. Culpable State of Mind

The second condition necessary to sanction a litigant for

spoliation of evidence requires the Court to determine whether

Home Depot destroyed the evidence with a culpable state of mind. 

In this case, Home Depot argues that sanctions are not warranted

because “plaintiffs have completely failed to introduce any

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evidence of a culpable mindset or bad faith.” (Doc. 68, at 3-4). 

Again, Home Depot points to the Rosses’ failure to ask pertinent

questions during the depositions of Home Depot’s witnesses,

stating that “at no point during any of the six depositions of

Home Depot employees does plaintiffs’ counsel ask a single

question as to intent, motive, or frame of mind with regard to

the treatment of the historical video.” Id. at 4. Home Depot

also relies upon several cases which, in its view, support its

argument that its conduct does not constitute spoliation of

evidence.

In Pollard v. City of Columbus, 2013 WL 5334028, *4 (S.D.

Ohio Sept. 23, 2013), the Court observed:

To prove a culpable state of mind, a party must

demonstrate that the alleged spoliator destroyed the

evidence knowingly or negligently. A culpable state of

mind, the Sixth Circuit has explained, depends on the

alleged spoliator’s mental state regarding any obligation

to preserve evidence and the subsequent destruction. 

This factor may be satisfied by a showing that the

evidence was destroyed knowingly, even if without an

intent to breach a duty to preserve it, but even

negligent conduct may suffice to warrant spoliation

sanctions under appropriate circumstances.

(internal quotations and citations omitted). Accordingly,

spoliation “fall[s] along a continuum of fault, ranging from

innocence to intentionality....” Id.

In this case, it is not disputed that Home Depot did not

preserve evidence which was requested by the preservation letter

and which existed when that letter was received. Although the

Rosses have not provided any direct evidence of bad faith, Home

Depot’s conduct was, at the very least, negligent. It is a fair

inference from the record (and the Court makes that inference)

that Home Depot did not take reasonable steps to make sure that

Ms. Young, who was tasked with preserving the evidence, knew what

was actually in the preservation letter. Also, Home Depot did

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not ask her or anyone else to look at the footage which the

letter requested before allowing that footage to be destroyed. 

Because negligent conduct can satisfy the second condition

necessary to sanction a litigant for spoliation of evidence, the

Rosses have proved that Home Depot acted with a sufficiently

culpable state of mind. See Byrd, 518 Fed. Appx. at 384.

The cases cited by Home Depot do not suggest otherwise. Eby

v. Target Corp., 2014 WL 941906, *5 (E.D. Mich. Mar. 11, 2014) is

distinguishable because the only evidence before the Court was

that “the video cameras did not capture the area where Plaintiff

fell and so Target did not retain them.” Although Jackson v.

Target Corp., 2013 WL 3771354, at *2 (E.D. Mich. July 18, 2013)

and Health v. Wal-Mart Stores East, 697 F.Supp. 2d 1373 (N.D. Ga.

2010) are more like this case, neither of those cases involved a

situation where, as here, the prospective plaintiffs specifically

requested preservation of the evidence at issue at the outset of

the litigation and prior to its destruction. Because that is

exactly what happened here, the second condition is satisfied.

C. Relevance

The third condition necessary to sanction a litigant for

spoliation of evidence is that the destroyed evidence might have

been relevant to the opposing party’s claim or defense. In its

decision on the motion for a protective order, this Court found

that the missing footage might have contained information which

would have led to other discovery, such as additional witnesses

(either Home Depot customers or employees) who could testify

about the condition of the display, or it might have shown other

trips or falls which would have been similar to Ms. Ross’

accident, even if they did not result in any claim against Home

Depot or injury to the customer. The Court also found that the

nature and details of other customers’ encounters with the cord

might provide factual context for a determination of whether the

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condition posed an open and obvious danger. For the same

reasons, the Court finds that the third condition required to

sanction a litigant for spoliation of evidence has been

satisfied. It cannot be known for certain that anything on the

now-destroyed footage was relevant, but it might have been, and

that is enough. Consequently, the Court finds that actionable

spoliation occurred in this case and that some type of sanction

is warranted.

D. Sanctions

This Court has wide-ranging discretion to create a proper

sanction for spoliation of evidence. Pollard, 2013 WL 5334028,

*6. The Court’s authority to impose sanctions for spoliation

does not arise “from substantive law but, rather, ‘from a court’s

inherent power to control the judicial process.’” Equal Emp’t

Opportunity Comm’n v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166

(S.D. Ohio 2013)(quoting Adkins v. Wolever, 554 F.3d 650, 652

(6th Cir. 2009)). The Court must be mindful to “impose a

sanction that is proportionate to the seriousness of the

infraction” under the particular facts of this case. In re

Smartalk Teleservices, Inc., 487 F. Supp.2d 947, 950 (S.D. Ohio

2007). The least severe sanction must be imposed, one that is

commensurate with the degree of prejudice to the non-offending

party. Pullins v. Klimley, 2008 WL 85871, *6 (S.D. Ohio Jan. 7,

2008). Home Depot bears the burden of establishing lack of

prejudice from its spoliation of evidence. See Austral-Pacific

Fertilizers, Ltd. v. Cooper Indus., Inc., 1997 WL 124097, at *4

(6th Cir. Mar. 18, 1997) (describing this burden as “an uphill

battle”).

Of course, it is difficult to know what the value of the

evidence at issue would have been had it not been destroyed. 

Given the fact that Home Depot has produced all of its records

concerning any incidents with the display and has also made the

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employees familiar with its construction and operation available

to be deposed, there is a fair chance that the missing footage

would not have shown anything which the parties do not already

know. The opposite conclusion, however, cannot be definitively

ruled out. Thus, there is probably some prejudice to the Rosses,

but it is not likely a great deal of prejudice.

The Rosses have asked the Court to give a mandatory adverseinference instruction, which would instruct the jury “that the

lost video footage would have been favorable Plaintiff’s claims

for compensatory and punitive damages in this matter.” (Doc. 72

at 7). Because there is no evidence that Home Depot acted in bad

faith and because the footage would in all likelihood be mostly

cumulative of existing evidence, the Court finds that a

permissive adverse-inference instruction is a more appropriate

sanction. A permissive adverse-inference instruction allows, but

does not require, the jury to infer a given fact, and it is

appropriate when the culpable state of mind is negligence. Arch

Ins. Co. v. Broan-NuTone, LLC, 509 Fed. Appx. 453, 459 (6th Cir.

2012). 

Based upon the foregoing, the jury will be instructed as

follows:

You have heard testimony about video footage that was not

produced. The Rosses have argued that this evidence may

have shown something important about this dispute.

This Court has found, and you must accept as true, that

the Rosses requested Home Depot to preserve video footage

showing the fan display area from the time the fan

display was erected until after Ms. Ross fell and was

taken away by the EMS squad. That footage existed when

she asked for it, but the only footage which Home Depot

kept was the footage beginning 20 minutes before the fall

and ending about 50 minutes later. 

The Court has also found, and, again, you must accept

this finding to be true, that Home Depot negligently

failed to preserve this evidence - that is, it did not

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take reasonable steps to make sure that the footage in

question was not recorded over even though it had been

asked to do that.

From this Court’s findings, you are allowed to infer, or

conclude, that the lost footage would have shown

something favorable to the Rosses and unfavorable to Home

Depot.

I am not telling you that you have to reach that

conclusion, only that you can if you think it reasonable.

Whether or not you do so is solely a matter within your

collective discretion based on your consideration of this

instruction and all of the other evidence in the case.

Of course, this instruction may be modified by the Court at the

time of trial in order to make it consistent with evidence and

argument presented.

Finally, the Rosses have asked this Court to award sanctions

in the form of attorneys’ fees for the time and effort expended

in discovery and motion practice relating to the missing video

footage. They have prevailed on their motion, but Home Depot

made legitimate arguments both about whether any sanction should

be imposed and about what sanction might be appropriate. For

these reasons, the Court does not believe an award of attorneys’

fees is warranted.

III. Conclusion

Based upon the foregoing, the motion for sanctions for

spoliation of evidence (Doc. 57) is granted. The jury will be

given a permissive adverse-inference instruction as follows:

You have heard testimony about video footage that was not

produced. The Rosses have argued that this evidence may

have shown something important about this dispute.

This Court has found, and you must accept as true, that

the Rosses requested Home Depot to preserve video footage

showing the fan display area from the time the fan

display was erected until after Ms. Ross fell and was

taken away by the EMS squad. That footage existed when

she asked for it, but the only footage which Home Depot

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kept was the footage beginning 20 minutes before the fall

and ending about 50 minutes later. 

The Court has also found, and, again, you must accept

this finding to be true, that Home Depot negligently

failed to preserve this evidence - that is, it did not

take reasonable steps to make sure that the footage in

question was not recorded over even though it had been

asked to do that.

From this Court’s findings, you are allowed to infer, or

conclude, that the lost footage would have shown

something favorable to the Rosses and unfavorable to Home

Depot.

I am not telling you that you have to reach that

conclusion, only that you can if you think it reasonable.

Whether or not you do so is solely a matter within your

collective discretion based on your consideration of this

instruction and all of the other evidence in the case.

This instruction may be modified by the Court at the time of

trial in order to make it consistent with evidence and argument

presented. The Rosses’ request for attorneys’ fees is denied.

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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